Feb. 25, 2019-Myths v. Facts #12

12. Myth: There should not be any principles or presumptions in the Divorce Act.

Facts:

I. For decades jurisprudence has relied on the existing maximum contact principle in the Divorce Act. It has gone some way, but only in an inconsistent fashion, to preserve children's relationships against the wishes of a parent seeking to marginalize the other parent.

II. The maximum contact principle reflects Canadian value systems and understanding that children need two primary parents and not one parent and someone they go to "visit" from time to time.

III. Accordingly, the maximum contact principle for 25 years has been a hallmark of the goals of the Act and lives harmoniously within the broader context of "best interests", as would a rebuttable presumption of equal shared parenting.

IV. Experience with the inconsistent application of the maximum contact principle has demonstrated that the maximum contact principle does not go far enough to serve its purpose and that is why a rebuttable presumption of equal shared parenting as a starting point is required to cure the current inability of the system to actually protect the best interests of children after separation.

V. The proposed changes in Bill C-78 at least seek to preserve this core principle that Courts have, albeit inconsistently, used as a boundary issue in an otherwise overly-broad discretion. The "friendly parent" principle currently contained in Section 16(9) has been moved elsewhere and should be reinserted as a core principle in the proposed Section 16.2(1).

VI. The proposal of the Canadian Bar Association to weaken the maximum contact principle to the point that it is meaningless should be rejected. It is a regressive proposal that will be a set-back in helping families restructure in a healthy manner and it will overturn decades of jurisprudence which has been used to help protect relationships and to provide a background to encourage settlements. Maximum contact was deemed by previous Parliaments and decades of jurisprudence to be consistent with children's best interests. It remains so today.

VII. Both the title and the content of proposed Section 16.2(1) should be retained, to be applied even if there is a rebuttable presumption of equal shared parenting.

VIII. There is going to be some sort of presumption in the proposed mobility provision - so it is inconsistent to state there should not be any presumptions or principles elsewhere.

Submission to the House of Commons Standing Committee on Justice and Human Rights on Bill C-78 by the Canadian Association for Equality and Brian Ludmer, B.Comm, LLB. - Myths and Facts Concerning a Rebuttable Presumption of Equal Shared Parenting, 27 November 2018